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230 VIRGINIA LAW REGISTER. [July, 

real estate is under no obligation to record his conveyance, save as to " subsequent 
purchasers for value, without notice and creditors." He owes no such duty to 
prior purchasers. Thus, if A should buy on January 1, 1895, and fail to record 
his conveyance ; then B should buy the same property from the same grantor, for 
value and without notice, on July 1, 1895, and should likewise fail to record ; 
then on December 1, 1895, A should record his conveyance — B would have 
priority, even though his conveyance should never be recorded. The moment B 
completed his purchase, A's conveyance became, by express provision of the 
statute, absolutely void as to B; nor will subsequent recordation by A, or a failure 
to record by B, restore validity to A's invalid deed. The only penalty which the 
statute inflicts upon B for his failure to record, is that his deed shall be void as to 
subsequent purchasers (and creditors); A is not a subsequent purchaser, and hav- 
ing by his negligence induced B to rely upon the title of their common grantor, 
and not having been himself injured by B's failure to record, the statute very 
justly gives the, latter priority over him. — Davis v. Beadey, 75 Va. 491, 496. 
Prof. Minor reaches the same conclusion, without the citation of authority: 2 
Minor's Inst. (2d Ed.) 877 ; lb. (4th Ed.) 968. 

In many, if not most, of the states, in order to be protected, the subsequent 
purchaser or incumbrancer is required not only to have his deed recorded, but this 
must be done before the recordation of the competing conveyance. Hence, in 
such states, priority of right depends upon priority of recordation. See 1 Devlin 
on Deeds, sec. 626 et seq. W. M. L. 

Usury — Interest on deferred payments of purchase money. — Where property is 
sold bona fide, and not as a shift to cover a loan, the deferred payments, by agree- 
ment at the time of sale, may be made to bear any rate of interest that the par- 
ties may agree upon, without infringing the statute against usury. What is called 
" interest " is as much a part of the purchase price as the principal sum, and, 
though it exceed the legal rate, the transaction is not usurious : Graeme v. Adams, 
23 Gratt. 225, 234— s. c 14 Am. Rep. 130; Beger v. O'Neal (W. Va.), 10 S. E. 
Rep. 375 ; 27 Am. and Eng. Enc. Law, 1000. See also Kraker v. Shields, 20 
Gratt. 377, 398. W. M. L. 

Implied Warranty op Quality where Goods are Sold by Sample. — It 
is an established rule that upon an executory contract of sale, where goods are 
ordered for a particular use or purpose made known to the seller, the latter im- 
pliedly undertakes that they shall be reasonably fit for the use or purpose for 
which they are intended. See Jones v. Just, L. R., <5 Q. B. 197 ; Kellogg Bridge Co. 
v. Hamilton, 110 U. S. 108 ; Gerst v. Jones, 32 Gratt. 518. The reason of this ex- 
ception to the maxim caveat emptor is that the buyer has no opportunity of in- 
spection, and relies upon the judgment of the seller. But what is the law where 
a sale is by sample, and the bulk supplied is exactly like the sample, but the sam- 
ple itself, through some secret defect of material or manufacture, is unfit for the 
purpose designated by the buyer? This question was considered in Mody v. 
Gregson, L. R. 4 Ex. 49, where shirtings sold by sample were like the sample, 
but the requisite weight had been given to the goods by the introduction of fifteen 
per cent, of clay into the fabric, as had also been done in the sample, thus render- 



1895.] FOB THE JUNIORS. 231 

ing the shirtings unmerchantable. The case was decided against the manufac- 
turer ; but the decision was on the ground that there was fraud, either on his 
part, or by his servants, for which he was responsible. And see Heiibutt v. Hick- 
ton, L. B. 7 C. P. 438, where the sample shoe had paper in the sole. But how 
would it be as to an honest sample, where the bulk corresponds with the sample, 
but proves unfit for the buyer's purpose, owing to a secret defect of manufacture, 
of which manufacturer and buyer were equally ignorant ? Does the sale by sam- 
ple exclude the implied warranty of fitness for the buyer's purpose, or does such 
warranty continue notwithstanding the sample, so that the manufacturer is liable 
for its breach ? 

This interesting question was decided in England by the House of Lords in 
1887, in the important case of Drummond v. Van Ingen, 12 App. Cas. 284, in favor 
of the buyer. In this case, Van Ingen & Co., cloth merchants, ordered of James 
Drummond & Sons, cloth manufacturers, worsted coatings, known in the trade as 
"corkscrew twills," which were to be shipped to the United States and sold 
there to tailors, to be turned into coats and other garments, the manufacturers 
knowing the use for which the cloth was intended by the buyers. The coatings 
were to be in quality and weight equal to samples furnished by the manufacturers. 
The coatings supplied corresponded in every particular with the samples ; but 
there was a secret defect of manufacture in both sample and bulk, which made 
the coatings unfit for the purpose for which they were designed. This defect 
was "slipperiness," i. e., a want of sufficient connection or cohesion in the texture 
of the cloth between the warp and weft. The result was that when the cloth was 
made into garments in the ordinary manner the seams gave way with no more 
than ordinary tension, and the braid became detached from the cloth. In conse- 
quence of this defect, many purchasers from Van Ingen & Co. returned the cloth 
to them, or compelled them to make allowances, for which they, when sued by 
Drummond & Sons, sought compensation by way of counter claim. 

It was decided by the House of Lords that the manufacturers were liable, the 
Earl of Selborne, Lord Herschell and Lord McNaghten delivering opinions. 
The ground of the decision is thus stated by Lord McNaghten (p. 296): "Then it 
was argued, defect or no defect, the sale was a sale by sample ; the goods corre- 
spond with the sample, and there is an end to the matter ; the seller has ful- 
filled his bargain. I think the sale was strictly a sale by sample. Certainly the 
goods corresponded with the sample only too well. But does this exact corre- 
spondence, when it is found to involve an unforeseen and unsuspected defect, re- 
lieve the seller from his obligation to supply goods fit for the purpose for which 
they were intended ? After all, the office of a sample is to present to the eye the 
real meaning and intention of the parties with regard to the subject-matter of the 
contract, which, owing to the imperfection of language, it may be difficult or im- 
possible to express in words. The sample speaks for itself. But it cannot be 
treated as saying more than such a sample would tell a merchant of the class to 
which the buyer belongs, using due care and diligence, and appealing to it in the 
ordinary way, and with the knowledge possessed by merchants of that class at the 
time. No doubt the sample might be made to say a great deal more. Pulled to 
pieces and examined by unusual testa which curiosity or suspicion might suggest, 
it would doubtless reveal every secret of its construction. But that is not the 
way in which business is done in this country. Some confidence there must be 



232 VIRGINIA LAW REGISTER. [July, 

between merchant and manufacturer. In matters exclusively within the province 
of the manufacturer the merchant relies on the manufacturer's skill, and he does 
so all the more readily when, as in this case, he has had the benefit of that skill 
before." . . . "It appears to me, therefore, that the sample must be treated 
as wholly silent in regard to this defect, and I come to the conclusion that if every 
scrap of information which the sample can fairly be taken, to have disclosed 
were written out at length, and embodied in writing in the order itself, nothing 
would be found there which could relieve the manufacturer from the obligation 
implied by the transaction," i. e., reasonable fitness for the designated purpose. 
See, also, Jones v. Padgett, 24 Q. B. D. 650. 

It will be observed that Drummond v. Van Tngen is a case of sale by a manu- 
facturer, and that the " slipperiness " was caused by a secret defect of manufacture. 
In such a case, where the sale is by sample, it is said to be still unsettled in the 
United States whether a manufacturer is liable for a latent defect in both bulk 
and sample, in the absence of fraud or an express warranty (see 2 Schouler's 
Pers. Prop. [2d ed.], sec. 365), though it is probable that our judges would fol- 
low Drummond v. Van Ingen. 

But when the seller by sample is not a manufacturer, but a dealer in goods 
made by others, it is held in the United States that he does not impliedly warrant 
against a secret defect in both bulk and sample. Here the buyer inspects the sam- 
ple, and relies on his own judgment, and the seller had no means of preventing 
the defect, and no better means of discovering it than the buyer. Story on Sales, 
sec. 376; 2 Sch. Pers. Prop., sec. 365; Dickinson v. Gay, 7 Allen (Mass.) 29 (83 
Am. Dec. 656). 

An intermediate case may be suggested where the seller by sample is a manu- 
facturer, but the secret defect in both bulk and sample is not due to the process 
of manufacture, but to the character of the material used. Now, assuming that 
the manufacturer was ignorant of the defect in the material, and that he used 
every proper precaution to guard against it, is he liable to the buyer for the 
breach of an implied warranty that the chattel should be fit for a designated pur- 
pose, where the sale is by sample, and the sample is made of the defective mate- 
rial as well as the bulk which corresponds therewith ? On this question we find 
no decision, and space forbids its discussion here. See, as bearing upon the 
point, what is said by Staples, J., in Qerst v. Jones, 32 Gratt. 522 and 523 ; and the 
English case of Randall v. Newson, in the Court of Appeal, 2 Q. B. D. 102, where 
it is held that on the sale of a chattel for a specific purpose there is a warranty 
by a manufacturer that it is reasonably fit for the purpose, and that there is no 
exception as to latent and undiscoverable defects in the material used (in that 
case for a carriage pole). But neither Qerst v. Jones nor Randall v. Newson was a 
sale by sample. See Randall v. Newton, commented on in 2 Sch. Pers. Prop., sec. 
358. And see .Hoe t>. Sanborn, 21 N. Y. 652 (78 Am. Dec 163.) C. A. G. 



Attachments — Sufficient cause — probable cause. — Unless our junior is careful, 
he is likely to be tripped by the stumbling blocks of "sufficient cause" and 
" probable cause," in connection with attachments. 

(1) Sufficient Cause — Sufficient cause is essential to maintain the attachment 
proceeding itself. On a motion to abate the attachment, the burden of proof is